HKSAR v. Xu Mai-qing

CACC 464 /2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 464 OF 2005

(ON APPEAL FROM DCCC 795 of 2005 )

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Before: Hon Stuart-Moore VP, Yeung JA and Beeson J in Court

Date of Hearing:   27 September 2006

Date of Judgment:  27 September 2006

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J U D G M E N T

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Hon Yeung JA (giving judgment of the Court):

1.This is yet another case of street deception.

2.On 3 June 2005, the applicant, Xu Mai-qing, a visitor from the Mainland, together with two others approached the victim in the street and tried to befriend her with a view to deceive her.

3.They suggested that the victim’s son would have an accident that might cost his life. They then persuaded the victim to seek “spiritual blessing” from a “Feng Shui” master who required valuables such as gold ornaments and cash to perform the necessary ritual to drive away the evil spirit in order to save her son.

4.The victim, however, was smart enough to report the matter to the police and the applicant was arrested after she failed to persuade the victim to give her the bag supposedly containing the valuables.

5.On 10 October 2005, the applicant appeared before Deputy Judge Chainrai in the District Court on a charge of conspiracy to defraud. She pleaded guilty to the charge and was sentenced to three years’ imprisonment.

6.The judge adopted a starting point of three years and reduced it by one-third to two years to reflect the guilty plea. The judge, on the prosecution’s application, then enhanced the sentence by 50% under section 27(11) of the Organized and Serious Crimes Ordinance (“OSCO”) by reason of the prevalence of the offence to bring the sentence back to three years’ imprisonment.

7.The judge, in her reasons for sentence, emphasized that the number of reported street deception cases employing the modus operandi of “spiritual treatment” was 137 for the first eight months in 2005, representing 48.4 % of the total number of reported street deception cases whereas the percentages in 2002, 2003 and 2004 were 42.6, 24.6 and 44 respectively. She therefore concluded, “Street deception adopting the modus operandi of ‘spiritual treatment’ was the prevalent modus operandum of street deception in 2004 and 2005.”

8.The judge also emphasized that the detection of street deception cases was difficult.

9.Not being satisfied with the sentence she received, the applicant seeks leave to appeal against sentence.

10.The only ground advanced by Mr Francis Yip, counsel for the applicant, is that the judge was wrong to enhance the sentence under “OSCO” as the offence in question was no longer “prevalent” at the time when the applicant was sentenced.

11.Mr Yip relies on the earlier decisions of this Court in HKSAR v Wong Fung Ming CACC 515/2001, HKSAR v Tang Kwok Wing CACC 253/2001 and HKSAR v Au Yeung Pui Wah CACC 149/2002.

12.This Court did, in those cases, emphasize that the power to enhance a sentence under “OSCO” is an extraordinary power and ought to be utilised sparingly. However, those cases related to “Loco London Silver” fraud and statistics from the prosecution indicated that the number of such cases in 1998, 1999 and 2000 were 15, 62 and 36 respectively. In 2001, there were only 20 such cases by 31 August 2001.

13.Not only had the number of “Loco London Silver” fraud cases decreased in 2001 as compared to the previous three years, in Tang Kwok Wing (supra), counsel for the respondent actually conceded that the offence in question was not prevalent at the time of sentence and therefore the enhancement under “OSCO” was not justified.

14.The statistics supplied to the judge in the present case indicated that the number of reported street deception cases in 2001, 2002, 2003 and 2004 were respectively 623, 811, 576 and 479. For the first eight months in 2005, the number of reported street deception cases was 283 and the total value of stolen properties exceeded $16 million.

15.Whilst the number of street deception cases might have decreased since its peak in 2002, it was still widespread and was still commonly being practised in 2005.

16.Under Section 27(11) of “OSCO”, what the prosecution has to prove is the prevalence of the offence, not the increase in the number of such offences.

17.Unlike the cases relied on by Mr Yip where the number of reported “Loco London Silver” fraud cases was small and was decreasing at the relevant time, the number of street deception cases remained very substantial in 2005 even though it had decreased since its peak in 2002.

18.Street deception, despite the publicity drive mounted by the police against it, was still prevalent in 2005 as indicated by the number of such cases. The offence still had to be deterred.

19.Further, the number of reported street deception cases adopting the modus operandum of “spiritual treatment” was not decreasing, not since 2003 anyway when the numbers of such cases in 2003 and 2004 were 142 and 212 respectively, whereas for the first eight months in 2005, it was already 137.

20.Even though the number of reported street deception cases adopting the modus operandum of “spiritual treatment” was at it highest of 346 in 2001, Mr Yip has to admit that street deception cases adopting such modus operandum was still prevalent in 2005 when its number stood at 137 for the first eight months, more or less the same as that in 2004 and far in excess of that in 2003.

21.The judge was right to take the view that street deception adopting the modus operandum of “spiritual treatment” was prevalent and that its detection was difficult. She was justified in enhancing the sentence under “OSCO”.

22.The only ground advanced by Mr Yip fails.

23.Street deception is a grave offence and must be deterred. As this Court observed in HKSAR v Huang Yu-huan [2002] 2 HKC 682 at p 686:

“The offences, of necessity, have to be both premeditated and well planned. They are certainly cynical and heartless crimes. If the fraud is successful, the consequences for the victim can be exceptionally distressing. They stand to lose the whole or a substantial part of their life savings upon which they are dependent for their living. This is something which could reduce them to penury.”

24.The sentence of three years’ imprisonment imposed on the applicant is neither manifestly excessive nor wrong in principle. We therefore refuse her application for leave to appeal against sentence.

Mr Gavin Shiu, SADPP of the Department of Justice for the Respondent.

Mr Francis Yip assigned by the Director of Legal Aid for the Applicant.